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2011 DIGILAW 1918 (RAJ)

Tribhuvan Vallabh Joshi v. State of Rajasthan

2011-09-06

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition, the petitioner has prayed for quashing impugned order dated 29.4.2006 (Annex.6) and prayed that it may be declared that the petitioner stood voluntarily retired from service with effect from 1.7.1988 or from 16.11.2000 and, accordingly, the respondents may be directed to grant retrial benefits to the petitioner along with interest. 2. According to facts of the case, the petitioner was initially appointed in the respondent Department as Teacher Gr.III on 15.9.1966 and his services were confirmed on the said post with effect from 9.8.1967 vide order dated 25.5.1972. The petitioner uninterruptedly continued in service of the respondents up to 15.4.1988; and , thereafter, due to disease 'paranoidee schizophrenia' the petitioner took leave and discontinued to attend office and submitted an application for sanctioning medical leave because the petitioner was not able to discharge his duties due to ill-health. 3. The petitioner further submits that he wrote a letter on 1.7.1988 to the respondents that due to ailment he may be retired from service and service benefits may be granted as he has completed the qualifying service. Again, on 17.8.1988, an application was filed by the petitioner for the same prayed and petitioner has placed on record letter dated 1.7.1988 along with U.P.C. receipt as Annex.2 and 2A. Contention of the petitioner in the writ petition is that he has not only suffered aforesaid disease but also suffered from residual polio in right lower limb, therefore, he was feeling weakness and difficulty in walking and cycling. As such the petitioner submitted medical bills and treatment slips for the perusal of the Court. 4. The case of the petitioner is that he has repeatedly filed applications on 1.12.1992 and, then, on 4.12.1992 under registered AD which he has placed on record as Annex.6; but, his prayer for voluntary retirement was not accepted by the respondents. Being aggrieved by non-consideration of his demand of acceptance of his voluntary retirement from service, ultimately, the petitioner sent an application under provisions of the Rajasthan Service Rules and prayed that his prayer for voluntary retirement from service with effect from 16.8.2000 may be accepted within a period of three months. Although the said application was sent through registered AD post, but no action was taken with regard to declaring the petitioner voluntarily retired from service either from 1.7.1988 or from the date of application subsequently filed on 16.8.2000. 5. Although the said application was sent through registered AD post, but no action was taken with regard to declaring the petitioner voluntarily retired from service either from 1.7.1988 or from the date of application subsequently filed on 16.8.2000. 5. Submission of the petitioner in the writ petition is that regularly he made prayer for medical leave after 16.4.1988 but the respondents did not intimate the petitioner about refusal of his medical leave, therefore, in the compelling circumstances the petitioner preferred writ petition before this Court being S.B. Civil Writ Petition No. 396/2002 which was dismissed vide order dated 6.2.2003 (Annex.8). 6. While dismissing the aforesaid writ petition, co-ordinate Bench of this Court granted liberty to the petitioner to file application and apprise the res-pondents that he has completed 20 years of qualifying service, therefore, he is entitled to some retrial benefits. The co-ordinate Bench of this Court observed in the judgment that representation, if any, filed by the petitioner before the concerned authority, the concerned authority is requested to consider the same is accordance with law and make the payment if any, accordingly. 7. Against the aforesaid judgment dated 6.2.2003, an appeal was preferred by the petitioner before the Division Bench of this Court and the said appeal was registered as D.B. Civil Special Appeal No. 272/2003 which was decided by the Division Bench of this Court on 12.5.2006. The Division Bench of this Court although dismissed the appeal but observed in the judgment that the petitioner's eligibility to claim retrial benefits on having left the job after 22 years of service is left to be determined by the respondents on making such representation, therefore, the Division Bench would not express any opinion on merit of such issue at the stage. 8. The petitioner filed detailed representation before the respondents for granting retrial benefits and treating the petitioner voluntarily retired from service. The case of the petitioner was considered but rejected vide impugned order dated 29.4.2006 while observing that the petitioner himself has abandoned the service, therefore, no retrial benefits is admissible to him. Further, it is observed in the order that the services of the petitioner have already come to an end on 16.4.1988, the day when he left the service. 9. Learned counsel for the petitioner, Mr. Further, it is observed in the order that the services of the petitioner have already come to an end on 16.4.1988, the day when he left the service. 9. Learned counsel for the petitioner, Mr. Vipul Singhvi vehemently argued that order impugned is totally in contravention of the basic principles of law because in the impugned order it is admitted by the respondents that no inquiry under Rule 16 of the Rajasthan Civil Services (CC & A) Rules, 1958 was conducted for terminating the services of the petitioner which is the pre-requisite condition under the rules for termination of the services of regular employees of the State. Learned counsel for the petitioner invited my attention towards Rule 86(3) of the Rajasthan Service Rules, in which, it is provided that in the event of willful absence from service for more than one month the services can be removed after following provisions of the R.C.S. (C.C.A.) Rules, 1958 and, admittedly, it is obvious from the order impugned that no such inquiry was conducted before terminating services of the petitioner, therefore, the respondents are under obligation to grant retrial benefits to the petitioner while treating him voluntarily retired from service either with effect from 1.7.1988, the day on which disability was shown by the petitioner or from 16.8.2000 when the petitioner again filed application for treating him voluntarily retired after expiry of the period of three months. 10. Learned counsel for the petitioner, Mr. Singhvi submits that in the pleadings it is not disputed by the respondents that the petitioner completed 22 years of service till 16.4.1988 and as per rule 244(1), RSR, which was in existence on 16.4.1988, the qualifying service for seeking voluntary retirement was 20 years, therefore, rejection of the petitioner's representation vide order Annex.13 is totally illegal and has no legal sanctity to stand in the eye of law. 11. 11. Learned counsel for the petitioner vehemently contended that it is the duty of the welfare State to take recourse to law for the purpose of taking action against an employee for the purpose of terminating his services but, in this case, admittedly the procedure laid down in the rules has not been followed and arbitrarily, in very casual manner, while deciding the representation of the petitioner, it has been held that petitioner's services came to an end with effect from 16.4.1988, which is totally unconstitutional and contrary to the rules, therefore, the impugned order may be quashed and respondents may be directed to treat the petitioner voluntarily retired from service and grant all retrial benefits. 12. Per contra, learned Addl. Advocate General, Mr. R.L. Jangid, Sr. Advocate assisted by Government Counsel Mr. Hemant Choudhary, counsel for the Elementary Education submits that it is a case of abandonment of service and service record of he petitioner is not available; but, the fact of willful absence from duty is established from the available record of the department, therefore, the matter was considered as per directions given by this Court on the representation filed by the petitioner vide impugned order dated 29.4.2006, in which, there is finding that the petitioner remained willfully absent from duty after 16.4.1988 and for the first time, application was filed for voluntary retirement with effect from 16.11.2000, therefore, in view of the judgment rendered by the Hon'ble Supreme Court in the case of State of Rajasthan vs. Mohammed Ayub Naaz, reported in AIR 2006 SC 856 , the writ petition filed by the petitioner deserves to be dismissed because the petitioner deserves to be dismissed because the petitioner himself abandoned the service and remained willfully absent from duty after 16.4.1988. 13. After hearing both the parties, first of all, I have perused the order dated 6.2.2003 (Annex.8) passed by the co-ordinate Bench of this Court in S.B. Civil Writ Petition No. 396/2002 filed by the petitioner, in which, following order was passed by the co-ordinate Bench of this Court : "However, if petitioner has completed the qualifying service for grant of pension prior to 15.4.1988 and is entitled for some retrial benefits and makes such a representation before the concerned Authority, the Authority is requested to consider the same in accordance with law and make the payment if any, accordingly. With the above observations, the petition stands dismissed." 14. I have also perused the order of the Division Bench of this Court, passed in D.B. Civil Special Appeal No. 272/2003 dated 12.5.2006, Annex.15, in which, following observations have been made while dismissing the special appeal : "Since the matter is left to be determined by respondents about petitioner's eligibility to claim retrial benefits on having left the job after 22 years service on making such representation, we do not express any opinion on merit of such issue at this stage." 15 . Upon perusal of the afore-quoted observation of the Division Bench, it is abundantly clear that liberty was granted to the petitioner to file application/representation before the respondents for the purpose of retrial benefits if the petitioner has worked for 22 years which is more than qualifying service for the purpose of seeking voluntary retirement. 16. In this case, admittedly, the respondents are not disputing the fact that the petitioner worked for more than 22 years till 16.4.1988 because the petitioner was initially appointed vide order Annx.1 on 9.9.1966 and continued to attend duties up to 16.4.1988, therefore, as per Rule 244(1), the retirement by he employee, the petitioner filed an application for voluntary retirement. 17. Likewise, in the Pension Rules of 1996, which is amended subsequently, there is provision under rule 50 of the Rules for seeking voluntary retirement on completion of 15 years' qualifying service; meaning thereby, there was provision in the rules for seeking voluntary retirement after completing the qualifying service, therefore, it was obligatory duty of the respondents to pass an order upon application filed by the petitioner for voluntary retirement. 18. It is admitted position of the case that no inquiry as contemplated in Rule 86(3) of the R.S.R. has been conducted against the petitioner for the alleged misconduct of willful absence from duty which is mandatory for terminating services of an employee working on regular basis. Rule 86(3) of R.S.R. reads as under : "(3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental authority may initiate departmental proceeding under Rajasthan Civil Service (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service." 19. Upon perusal of the above provisions it is abundantly clear that it is mandatory for the respondents to hold an inquiry for terminating the services of an employee who remained willfully absent from duty for more than one month. Therefore, obviously in the present case, the petitioner can raise such objection that his services has wrongly been treated as terminated without holding regular inquiry as per the above provision. 20. In the order impugned Annex.13 a strange finding has been given by the respondents that although they did not conduct any departmental inquiry for willful absence from duty but the petitioner's service came to an end with effect from 16.4.1988 because he himself has abandoned the service. In my opinion, a fallacious and unsound ground has been taken for rejection of the petitioner's claim while refusing voluntary retirement from service of an employee who had completed more than 20 years of service because there is option left for the employee to seek voluntary retirement as per rules. In this case, undisputedly the petitioner filed application for voluntary retirement on 1.7.1988 and on 16.8.2000 but no action was taken upon the said applications. Thereafter, due to illness although the petitioner made repeated requests for medical reimbursement but, that too, was not taken into consideration by the respondents though it is admitted in the pleadings that applications were filed by the petitioner. 21. In this view of the matter, in my opinion, it appears that on the one hand no departmental inquiry was conducted against the petitioner for alleged willful absence from duty and, on the other hand, the respondents passed an order upon representation of the petitioner that he himself has abandoned the service, therefore, his services have come to an end. It seems that the respondents do not want to follow the procedure laid down in the rules and upon untenable grounds rejected the claim of the petitioner for treating him voluntarily retired from service. It seems that the respondents do not want to follow the procedure laid down in the rules and upon untenable grounds rejected the claim of the petitioner for treating him voluntarily retired from service. There is strength in the argument of learned counsel for the petitioner that if the petitioner's application for voluntary retirement is not accepted and for 12 years no action is taken against him, then, in the event of filing subsequent application in the year 2000 his prayer for voluntary retirement from service with effect from 16.11.2000 was to be accepted because he had completed more that 20 years of service and no inquiry was conducted by the respondents. 22. It appears that there is complete inaction on the part of the respondents in not hiding any inquiry against the petitioner for alleged misconduct of willful absence from duty, so also, not deciding the application of he petitioner for seeking voluntary retirement even though he completed more than 20 years of service. In the judgment cited by learned counsel for the State in the case of Mohammed Ayub Naaz (supra) inquiry under Rule 16 of the C.C.A. Rules was conducted and termination of services was result of the finding of he inquiry. But, here in this case, no inquiry was conducted and, therefore, the respondents were under obligation to accept the prayer of the petitioner for voluntary retirement on the basis of adjudication made by Hon'ble Supreme Court in which it is held that denial of petitioner's request for voluntary retirement was totally against the principles of natural justice because for the action taken by the respondents no opportunity was given to the petitioner. 23. As a result of the aforesaid discussion, this writ petition deserves to be allowed. Hence, this writ petition is allowed. Order impugned Annex.13 dated 29.4.2006 is quashed and set aside. The petitioner is declared voluntarily retired from service with effect from 16.11.2000. The service period of the petitioner with effect from 17.4.1988 up to 16.11.2000 shall not be counted for the purpose of qualifying service, so also, any other benefit but the petitioner shall be entitled for retrial benefits with effect from 16.11.2000 for 22 years' services rendered by him upto 16.4.1988. The service period of the petitioner with effect from 17.4.1988 up to 16.11.2000 shall not be counted for the purpose of qualifying service, so also, any other benefit but the petitioner shall be entitled for retrial benefits with effect from 16.11.2000 for 22 years' services rendered by him upto 16.4.1988. all retrial benefits shall be paid to the petitioner as a consequence of acceptance of the voluntary retirement of the petitioner with effect from 16.11.2000 within a period of three months from the date of receiving certified copy of this order. No order as to costs.